What Are the Rights of the Arrested?

On behalf of Kyle Law Firm posted in Criminal Defense on Thursday, August 21, 2014.

More likely than not, you've watched a show like CSI, Law and Order, or NCIS. As you've watched you might have noticed that these shows focus mostly on the investigation or trial processes of the criminal system. However, there is little focus on the actual rights of those arrested. You've probably heard of Miranda Rights (look up the iconic scene of Channing Tatum attempting to recite them in 21 Jump Street if you haven't already seen the movie), but you likely don't know how a formal arrest process works. What does it really mean to be under arrest?

Once a person is arrested, they no longer are formally able to walk away from law enforcement without legal punishment. Arrest is the process that usually precedes incarceration, and involves law enforcement officials acquiring the suspect in question. Arrest cannot occur without visible testimony of a criminal act or probable cause.

The Arrest Warrant

An arrest warrant is often used to authorize taking a suspected criminal into custody and is provided by a judge. Arrest warrants include details of the suspect including the crime committed, and also provide police instructions as to how the subject is to be detained. To get an arrest warrant, law enforcement officers must swear under oath and give testimony to the judge providing details of the crime they either witnessed or have evidence relating to, and ensure the suspect is tied to the crime. All information pertaining to the reason for arrest is required to be issued to both the judge and the suspect to protect the rights of the accused.

An arrest warrant does not have to be issued if the officer is present when the crime is committed, or has probable cause to believe a suspect in the presence of the office has committed a felony. If an officer believes the suspect is a threat to themselves or other the general public, they may make an "exigent circumstances" arrest. If an officer is pursuing a suspect, he or she does not have to have a warrant to enter a dwelling or make an arrest.

The Use of Force

Most cop shows will show you a procedure known as "knock and notice", in which the officer will knock on the door to the home of the suspect. Adequate time must be given to answer the door, to avoid police barging into a home unnecessarily. However, if the suspect poses danger to the officers, others in the dwelling or neighbors, or if announcing the police presence will cause the suspect to flee or destroy evidence, they can ignore the knock and notice procedure.

Depending on the cooperation of the suspect and the resistance level, officers can determine how much force is necessary to detain a suspect. The courts will then rule if there was necessary force or use of unnecessary force. Lethal force is often only authorized if the suspect points a weapon at officers, is about to commit a violent felony, or poses a danger to other members of the public .

Miranda Rights

Due to the Fifth and Sixth Amendments, suspects are required to be read their Miranda Rights, which protect against self-incrimination and say that a suspect has the right to a lawyer and does not have to answer questions. They also must be made aware of the charges against them, and can be released if these procedures are not followed carefully.

The process of arrest may seem simple, but there are often legal complications in issuing arrest warrants or detainment processes that cause charges to be dropped, despite the suspect admitting guilt. If you have further questions or feel your rights have been violated during the process of arrest, call our law office today.

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